Hostname: page-component-745bb68f8f-l4dxg Total loading time: 0 Render date: 2025-02-11T00:22:36.575Z Has data issue: false hasContentIssue false
  • English
  • Français

Commonwealth Family Courts: Some Legal and Constitutional Implications

Published online by Cambridge University Press:  24 January 2025

H. A. Finlay
H. A. Finlay*
Affiliation:
Monash University
Get access Rights & Permissions [Opens in a new window]

Extract

The announcement by the former Attorney-General, Mr. T. E. F. Hughes, at a meeting of Attorneys-General on July 9, 1970 that the Commonwealth Government was investigating the possibility of introducing a system of family courts into Australia and that a senior officer of his Department would visit overseas countries to study the operation of such courts has raised a number of questions as to the possible form that they would be likely to take. Since then, the officer concemed has made his investigation and returned, and there has been a change in the occupancy of the office of Attorney-General. Apart from that slender factual background there can be only speculation. From speculation one turns to a consideration of the legal and constitutional framework within which the Commonwealth's power to manoeuvre is to be found. It is the existence of that framework and the limitations it brings with it that distinguishes Australia's position from that of most overseas countries. That circumstance alone will of necessity influence any action the Commonwealth may be minded to take in the direction of family courts.

Type
Research Article
Information
Federal Law Review , Volume 4 , Issue 2 , June 1971 , pp. 287 - 309
Copyright
Copyright © 1971 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The Age, July 10, 1970.

2 The Constitution provides in s. 51 that the Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xxi.) marriage; (xxii.) divorce and matrimonial causes; andin relation thereto, parental rights, and the custody and guardianship of infants.

3 R. Sackville and C. Howard: “The Constitutional Power ofthe Commonwealth to Regulate Family Relationships” (1970). 4 F.L. Rev. 30.

4 Ibid.

5 Id., 36.

6 Id., 38.

7 Id., 39, n. 31.

8 Constitution s. 122.

9 Constitution s. 77(iii.).

10 That is, arising otherwise than in the course of a matrimonial cause and depending therefore, if within power at all, on placitum (xxi.) rather than on placitum (xxii.).

11 Attorney-General for Victoria v. Commonwealth (Marriage Act case) (1962) 107 C.L.R. 529, 580-581.

12 Lansell v. Lansell (1964) 110 C.L.R. 353, 363.

13 Id.,366.

14 (1970) 4 P.L. Rev. 30, 58.

15 Halsbury, Laws of England, (3rd ed.) Vol. 12, 213, para. 391; Jowitt,Dictionary of English Law, Vol. II, 1155.

16 Matrimonial Causes Act 1857 (U.K.), s. 6.

17 Judicature Act 1925 (U.K.), s. 225.

18 [1961] P. 135.

19 [1952] P. 47.

20 Cf. Matrimonial Causes Act 1959-1966 (Cth), s. 43.

21 [1952] P. 47, 52, per Somervell LJ.; id., 54, per Jenkins L.J.; and id. 55, per Hodson L.J. The decision in Swee v. Bishop of Ely [1902] 2 Ch. 508 in which it was held that proceedings for a separation order taken in a Court of Petty Sessions were not a matrimonial cause is no obstacle to an extension of the concept of “matrimonial cause”, since the decision in that case rested again on the legislative definition and not on any inherent limitation upon the concept.

22 Green v. Lord Penzance (1881) 6 App. Cas. 657, 671 per Lord Selbome, L.C.

23 Jowitt, Dictionary of English Law, Vol. II, 1155.

24 Compare the observations of Lord Devlin in a related matter in Official Solicitor v. K. [1963] 3 All E.R. 191, 210.

25 Attorney-General of the Commonwealth v. The Queen (The Boilermaker's case) (1957) 95 C.L.R. 529, 545.

26 Mr N. Bowen, Attomey-General for the Commonwealth, 18 May, 1967,1967 H.R. Deb. 2336.

27 “Separate Lives and S. 28(m)” (1970) 2 A.C.L.R. 2, 3, n. 16.

28 Information supplied by the Commonwealth Statistician.

29 Matrimonial Causes Act 1959-1966 (Cth), ss. 91 and 93, which provide for cases stated and for special leave to appeal from judgments, decrees or orders of State. Supreme Courts under the Act, respectively.

30 (1971) 45 A.L.J.R. 62. See also Knight v. Knight (1971) 45 A.L.J.R. 315.

31 Cf. Nicholls v. Nicholls [1962] S.A.S.R. 290, Ullrich v. Ullrich [1969] S.A.S.R. 107, Thomas v.Thomas ]1969] S.A.S.R. 177.

32 C. 1604.

33 Id., 12..

34 Ibid.

35 1 Hag. Con. 35; 16 E.R. 466.

36 Id., 36-37; 161 E.R.467.

37 Beeby v. Beeby, 1 Hag. Ecc. 789, 790; 162 E.R. 75S, 756.

38 Ibid.

39 Matrinlonial Causes Act 1857 (U.K.), s. 31; Matrimonial Causes Act 1959-1966 (Cth), s. 41 (a).

40 Matrimonial Causes Act 1857 (U.K.), s. 31; Matrimonial Causes Act 1959-1966 (Cth), s. 69. Recrimination as a peremptory bar continued to exist much longer in other jurisdictions, for example in California where it only came to an end in 1952 an a result of the decision in De Burgh v. De Burgh (1952) 39 Cal. 2d. 858; 250 P. 2d. 598.

41 Otway v. Otway [1888] 13 P.D. 141.

42 Morgan v. Morgan and Porter (1869) L.R. 1 P. D. 644, 646-7; Constantinidi v. Constantinidi and Lance [1905] P. 253; Hines v. Hines and Burdett [1918] P. 364; cf. Apted v. Apted and Bliss [1930] P. 246, especially at p. 259, for a review of the cases.

43 [1943] A.C. 517.

44 (1948) 76 C.L.R. 529.

45 [1921] N.Z.L.R. 876.

46 [1921] N.Z.L.R.. 955.

47 A. P. Herbert's Divorce Bill. See A. P. Herbert, The Ayes Have It (1938), Appendix II.

48 Although anticipated by New Zealand as long ago as 1908, followed by.Western Australia in 1911 and Victoria and Tasmania in 1919.

49 Matrimonial Causes Act 1959-1966 (Cth) s. 29.

50 [1955] A.C. 402.

51 (1958) 99 C.L.R. 1.

52 For example, see the speech of Mr Arthur Calwell. on the introduction of the ground: (1959) 25 H.R. Deb. 2697.

53 Matrimonial Causes Act 1959, s. 28(m).

54 Pioneered in New Zealand in 1920 (Divorce and Matrimonial Causes Amendment Act 1920 (N.Z.), s. 4) and adopted in Western Australia in 1945 (Supreme Court Amendment Act 1945 (W.A), s. 2) and, in somewhat different form, in South Australia in 1938 (Matrimonial Causes Amendment Act 1938 (S.A.).

55 [1964] A.C. 644.

56 [1964] A.C. 698.

57 See B. Passingham, The Divorce Reform Act 1969 (1970); Olive Stone “Moral Judgments and Material Provision in Divorce” (1969) 3 Fam. L. Q.371; C. M. Butler, “A Sole Ground for Divorce” (1971) 45 A.LJ. 168.

58 Family Law Act of 1969.

59 CC 4506 (2).

60 CC 4506 (1).

61 CC 4507.

62 Cf. H. A. Finlay, “Family Courts: Gimmick or Panacea?”(1969) 43 A.L.J. 602, 604; H. H. Kay, “A Family Court: The California Proposal” (1968)56 Cat Law Rev. No. 4 1: 205, 1218-1219; Foote, Levy & Sander, Cases and Materials on Family Law (1966) 686—694.

63 Divorce Reform Act 1969 (U.K.), s. 2(1): 7he court-hearing a petition for divorce shall not hold the marriage to have broken down irretrievably ;unless the petitioner satisfies the court of one or more of the following facts that is to say—(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted.

64 Mr Ray Watson, Q.C., in a paper delivered to a meeting of the Sydney Law Graduates Association, June 1969.

65 For discussions of some of the features that a family court could have see J. M. B.iggs, “Stability of Marriage—a Family Court?” (1961) 34 A.L.J. 343; Colin Howard, “Matrimonial Conciliation” (1962) 36 A.L.J. 148; H. A. Finlay, “Family Courts-Gimmick or Panacea?” (1969) 43 A.L.J. 602; Brigitte M. Bodenheimer, “Reflections on the Future of Grounds for Divorce” (1968) 8 J. Fam. L. 178 Elizabeth D. Dyson & Richard B.Dyson, “Family Courts in the United States” (1968) 8 J. Fam. L. 505, (1969-70) 9 J. Pam. L. 1; Paul McLane Conway, “To Insure Domestic Tranquility: Reconciliation Services as an Alternative to the Divorce Attorney” (1969-70) 9 J. Fam. L. 408.

66 Matrimonial Causes Act 1959-1966 (Cth), s. 14.

67 Id., s. 14(1).

68 Id., s. 85(2).

69 Reeves v. Reeves [1961] V.R. 481, 2 F.L.R. 26; Votskos v. Votskos [1967] V.R. 569 (1967) 10 F.L.R. 219; Sing v. Muir (1969) 16 F.L.R. 211, noted (1970) 4 F.L. Rev. 172; cf. H. A. Finlay. “Natural Justice in Custody Proceedings” (1970) 2. A.C.L.R. 94; but see Staats v. Staats (1970) 16 F.L.R. 279 as tothe probative value of such evidence, and the limitations that it implies.

70 Matrimonial Causes Rules, rule 212.

71 Id., rules 165-169.

72 Id., rule 15, Forms 3, 3A.

73 Cf. Mr. Justice Selby, “The Development of Divorce Law in Australia” (1966) 29 Mod. LR. 473, 487; T. A. Pearce, “The Broken Maqiage—Is Modern Divorce the Answer?” in Divorce, Society and the Law (1969) 53, 67; Mr Justice Barber, “Divorce—The Changing Law” in Divorce, Society and the Law 69; H. A. Finlay, “The Broken Marriage and the Courts” (1971) 7 Univ. Q.L.J. 23.

74 (1959) 25 H.R. Deb. 2709, 2739; cf. H. A. Finlay, “The Broken Marriage and the Courts” (1971) 7 Univ. Q.LJ. 23.

75 Cf. Priest v. Priest (1963) 9 F.L.R. 384, 408, per Gowans J.

76 Barber, op. cit., 82.

77 See n. 15, supra.

78 Le Mesurier v. Connor (1929) 42 C.L.R. 481.

79 (1930) 44 C.L.R. 11.

80 Bankruptcy Act 1924-1929 (Cth), s. 23, substituted by the Bankruptcy Act 1929.

81 Federated Sawmill, Tinlberyard and General Wood Worker Employees Association v. Alexander (1912) 15 C.L.R. 308, 313.

82 (1971) 45 A.L.J:R. 62,64.

83 Compare the “uniform” maintenance and adoption legislation.

84 Waterside Worker's Federation of Australia v. Alexander (1918) 25 C.L.R. 434, and compare Kotsis v. Kotsis (1971) 4S A.LJ.R. 62 and the cases cited in n. 31, supra.

85 The Queen v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 44 A.L.J.R. 126, 128 per Kitto J.

86 Huddart Parker & Co. Pty Ltd v. Moorehead (1909) 8 C.L.R. 330, 357 per Griffith C.J., approved by the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd [1949] A.C. 134.

87 The Queen v. Davison (1954) 90 C.L.R. 353, 369 per Dixon C.J. and McTiernan J.; cf. FuUagar J. at p. 376; Trade Practices Tribunal case (1910) 44 A.L.J.R. 126, 128 per Kitto J.

88 Trade Practices Tribunal case (1970) 44 A.LJ.R. 126, 134 per Menzies I.; The Queen v. Davison (1954) 90 C.L.R. 353, 316 per Fullagar J.

89 (1954) 90 C.L.R. 353, 369 (per Dixon C.J. and McTiernan J.),. 376 (per Fullagar J.); United Engineering Union v. Devanayagam [1968] A.C. 356, 384-385 per Lords Guest and Devlin (dissenting, but not in these observations).

90 Trade Practices Tribunal case (1970) 44 A.L.J.R. 126, 135 per Windeyer J.

91 The Queen v. Davison (1954) 90 C.L.R. 353, 365.

92 Id., 381-382, and, to the same effect, 388 per Taylor J.

93 Id., 383.

94 Ibid.

95 Id., 384.

96 (1964) 110 C.L.R. 353, 369.

97 (1962) 107 C.L.R. 529, 576-577.

98 Ibid., 560-561.

99 (1866) L.R. 1 P.&D. 130, 133.

1 (1962) 107 C.L.R. 529, 577.

2 The Queen v. Davison (1954) 90 C.L.R. 353, 368 per Dixon C.J. and McTiernan J.

3 Id., 382-384, n. 93 supra.

4 Id., 384.

5 Trade Practices Tribunal case (1970) 44 A.L.J.R. 126, 139 per Windeyer J.; cf. the opinion of Owen J. at 142.

6 cf. id., 144 (Walsh J.); United Engineering Workers' Union v. Devanayagam, per Lords Guest and Devlin [1968] A.C. 356, 384-5.

7 44 A.L.J.R. 126, 135, 136 per Windeyer J.

8 Cf. Stair&s Institutions (1681 ed.) Book 1, Title N, para. 6: “… it is not the consent of the marriage as it relatetb to the procreation of children that is requisite; for it may consist though the woman be far beyond that date; but it is the consent whereby ariseth that conjugal society, which may have the conjunction of bodies as well as of minds, as the general end of the institution of. marriage, is the solaceand satisfactionof man.”

9 Cf. Matrimonial Causes Act 1959-196 (Cth), s. 18(1)(d).

10 I am ignoring the possibility that existed for obtaining dissolution by private Act of Parliament which resulted in 244 such dissolutions between 1715 and 1852, according to the 1850 Royal Commission on Divorce, as summarised Py the Morton Commission Report, 1956, Cmd. 9678, since that possibility was an exception to the proposition that divorce a vinculo was not generally available on any ground.

11 Consider the developments of the past twenty .years, and compare this “statement by Denning, L.J. in Trestain v. Trestain [1950] P. 198Google Scholar, 202: “… the fact that the husband has obtained this decree does not give a true picture of the condnct of the parties. I agree that the marriage has irretrievably broken down and that it is better dissolved. So let it be dissolved. But when it comes to maintenance, or any of the other ancillary questions which follow on divorce,then let the troth be seen, with this statement by Salmon, L.J. in Tumath v. Tumath (1970) 1Google Scholar All B.R. 111, 114-115: “When a marriage has irretrievably broken down and it is obvious that it will be dissolved it seems to me to be wrong that a great deal of public time and moneyshould be spent in deciding which of the parties is to be granted the decree or whether perhaps. they should both be granted a decree. Still less.is a respondent obliged to spend time and money. in calling evidence whether or not facts may exist which might theoretically entitle the court in its discretion to refuse a decree. Everyone knows that until comparatively recently divorce cases have habitually been hotly contested in public at great expense to the parties or to the legal aid fund solely. for the purpose of securing a supposed benefit for one or other of the parties in future maintenance or custody proceedings. This cannot in my view serve any useful purpose and may indeed be properly regarded as contrary to modem concepts of public policy.”, and with the opinion of Sachs, L.J. in porterv. Porter [1969] 3Google Scholar All E.R. 640, 644: “… it. is now commonly accepted that a decree based on a matrimonial offence, whilst of course establishing the factum of that offence, is often of little and sometimes of no importance in reaching conclusions as to whose conduct actually broke up the marriage.”

12 Supra, nn. 66, 67, 72.

13 Finlay, H. A. and Phillips, Lloyd, “A Sane Divorce Law for a Sane Society” (1970) 42Google Scholar No.3 Aust. Quarterly 75.

14 Cf. a proposal by Mr Justice Toose for postgraduate education for magistrates and practising lawyers on this subject made in a paper delivered at a meeting of the Sydney University Law Graduates Association in June 1969.

15 Matrimonial Causes Act 1959-1966 (Cth), s. 43.

16 Cf. Finlay, H. A., “The Unexceptional Exception” (1970) 1Google Scholar A.C.L.R. 81.

17 Matrimonial Causes Act 1959-1966 (Cth) ss, 9-13. 18.

18 (1962) 107 C.L.R. 529.

19 Id., 560.

20 Id., 579.

21 Constitution of the Commonwealth of Australia (2nd ed.) 474.

22 Legislative, Executive and Judicial Powers of the Commonwealth (3rd 217-218).

23 (1962) 107 C.L.R. 529, 578.

24 Particularly in view of the serious consequences that conviction even in a juvenile court may carry with it: see Re Walsh [1971] V.R. 33.

25 Although the gap has been narrowed to some extent by permitting power under the Matrimonial Causes Act. iIi relation to some ancillary matters to include certain illegitimate children as “a child of the marriage”: Matrimonial Causes Act 1959-1966 (Cth), s. 6(1)(c). Cf. Sackville, R. and Lanteri, A., “The Disabilities of lllegitimate Children in Australia: A Preliminary Analysis” (1970) 44Google Scholar A.L.J. 5, 51, 63 n. 44.

26 For example, in matters of custody, where, if they continue to be dealt with judicially, particularly in contested cases, it is to be hoped that no decision would be arrived at without expert psychiatric evidence having been taken, to prevent the irreparable harm that may be done by a change of custody. Cf. Michaels, N., “The Dangers of a Change of Parentage in Custody and Adoption Cases” (1967) 83Google Scholar L.Q.R. 547; Finlay, H. A. and Gold, Stanley, “The Paramount Interests of the Child in Law and Psycbiatry” (1971) 45Google Scholar A.L.J. 82; Professor Bevan, H. K. in his inaugural lecture at the University of Hull, 1970Google Scholar referred to 45 A.L.J. 54.

27 Constitution s. 51 (xxxvii.).